The main legal point established in the judgment is that the financial eligibility criteria in a tender process must be reasonable, non-discriminatory, and aimed at promoting fair competition among potential bidders.

JUDGMENT :

K.R. Mohapatra, J.

The petitioner, namely, Jagruti Welfare Organization, Bhubaneswar has filed this writ petition assailing the Tender Call Notice No. 9761 dated 27.8.2016 (Annexure-1) floated by Cuttack Municipal Corporation-opposite party no. 2 (for short ‘CMC’) inviting bids from eligible bidders for “Integrated Municipal Solid Waste Management Project of Cuttack Municipal Corporation-2016” (for short ‘the Tender’) and has prayed for setting aside the same.

2. The petitioner essentially assails the Clause 4.2(a) i.e. Financial Eligibility Criteria of the tender condition, which reads as follows:

“4.2 Financial Eligibility Criteria:

(a) The average Annual turnover should be more than 30 Crores for last 3 years and net worth should be positive. The turnover and the net worth should be supported by documents from competent authority. The Bidders should provide audited annual account statement in support of the claim. In case the bidders fail to provide such audited financial statements, the bid will be rejected. The Bid document must be accompanied by the Audited Balance Sheet, Profit and Loss Account and income tax return of last 3 (three) financial years, ending March 31st 2016, duly attested by the Charted Accountant. Self attested Photo copy is to be submitted. (Emphasis supplied)

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3. The petitioner in this writ petition contended that CMC-opposite party no. 2 had earlier floated tender for ‘Integrated Solid Waste Management’ in the year 2010. The quantity of the work to be undertaken by the successful bidder was as follows:

Sweeping and collection of Municipal Solid Waste (MSW): 100-120 MT per day.

Transportation of MSW: 150-200 MT per day.

Collection and transportation of debris: 3000 cubic feet per day.

Separation of MSW and operation of compost plant.

In the said notice inviting tender, the following was the financial eligibility criteria for the said bid:

Average annual turnover should be more than Rs.8 crores for last 3 years and net worth should be positive.

4. Whereas, in the year 2016, the CMC had initially floated a tender on 25.7.2016 primarily with the following scope of work:

Sweeping and collection of MSW : 100-120 MT per day.

Transportation of MSW: 150-200 MT per day.

Collection and transportation of debris: 8000-10,000 cubit feet per day.

Operation and maintenance of Compost Plant.

5. It is contended that the financial eligibility criteria at Clause 4.2 of the notice inviting tender, as quoted above, was unreasonably escalated to Rs. 30 crores in place of Rs.8 crores, as required in 2010. The technical bid was opened on 26.8.2016. Since only a single bid was received from one M/s. Global Waste Management Cell Private Limited, Mumbai, the same was cancelled and a fresh notice inviting tender was floated within 24 hours, with the same scope of work as well as financial eligibility criteria. The petitioner has, thus, filed this writ petition assailing the financial eligibility criteria of the tender conditions, essentially on two grounds, viz.

(1) There is no reasonable nexus for increasing the eligibility criteria from Rs.8 cores to Rs.30 crores for the scope of work remaining almost similar.

(2) The financial eligibility criteria were increased from Rs.8 crores to Rs.30 crores to oust several intending bidders like the petitioner and to limit the competition to chosen few.

Hence, the petitioner has prayed for the aforesaid relief.

6. The CMC filed its counter affidavit questioning the locus standi of the petitioner to maintain the writ petition. It is contended, inter alia, that prior to the impugned notice inviting tender (Annexure-1), the CMC had issued a similar Tender Call Notice No. 8616 dated 25.7.2016. The last date for submission of the bid was fixed to 25.8.2016 and prior to the said date, a pre-bid meeting was held on 8.8.2016. The petitioner, along with other potential bidders, had participat